Archive for the 'Law' Category

Sally is injured in a car accident. Her injuries make her unable to work. She receives substantial discounts from her health care providers and her remaining bills are paid by Medicaide.

At trial the insurance defense attorney hired by the at-fault driver wants to tell the jury about the discounts and Medicaide payments.

Will the trial judge allow him to do so?

No, says the “collateral source rule.” At least not if she lives in one of the states that still support the rule.

Collateral Source Rule Explained

The term “collateral” as used here means simply “additional”. The at-fault driver or “tort-feasor” as the law calls him, is responsible for making the injured person whole.

This includes making sure her medical bills are paid. Medicaide and the discounts are “additional sources” that have helped make Sally whole by paying her medical bills.

In the American legal system laws can be made by legislatures, administrative agencies, and by courts. The law created by courts is known as common law. The collateral source rule was court created in 1854.

The essence of this rule is summarized in Black’s Law Dictionary as follows:

“…if an injured person receives compensation for his injuries from a source wholly independent of the tort-feasor, the payment should not be deducted from the damages [monetary compensation] which he would otherwise collect from the tort-feasor. In other words, a defendant tortfeasor may not benefit from the fact that the plaintiff has received money from other sources as a result of the defendant’s tort.”

It is an evidentiary rule which means that the injured person has the right to ask the judge to keep evidence of collateral source payments away from the jury.

The most common collateral sources are medical insurance, workers compensation, VA medical benefits, Medicaide and other government programs.

Medical Discounts

While some states have refused to give medical discounts the protection of the collateral source rule, the majority opinion is just the opposite. A majority of states permit a plaintiff to recover the amounts billed for medical care, even when those amounts are discounted by the health care provider pursuant to a contract with the injured person’s health insurer.

States That Have Modified Or Eliminated The Rule

The legislatures of twenty eight (28) states have either abolished or modified the collateral source rule.

These states are as follows: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Missouri, Montana, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, West Virginia.

Here is a list, as of the date of this article, of the fourteen states that have completely abolished the rule: Alaska, Colorado, Connecticut, Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, New York, North Dakota, Ohio, and Oregon.

At the National Association of Mutual Insurance Companies website you can find a list of the states that have modified the rule with a summary of the modification:

http://www.namic.org/reports/tortReform/CollateralSourceRule.asp

Even if you live in a state where the rule has been abolished or limited by the legislature, you should check on the current status as some state supreme courts have overruled the legislature and reinstated the rule.

Conclusion

If yours is one of the twenty two states that still have the collateral source rule in full or one of fourteen that have retained it in part, you need to know about and understand it.

Insurance companies will try to reduce your compensation by amounts which your health insurance has paid. Be alert, don’t let them put the evidence in front of the jury.

Disclaimer

This article is for informational purposes only and is not intended to substitute for legal advice. Seek an opinion from an experienced injury attorney in your state of residence.

The growing Medicare shortfall in Washington has many politicians looking for ways to bridge the funding gap. As a result a new law, effective July 1, 2009, has been enacted which requires liability insurers (which include carriers who write CGL policies, auto policies, homeowners’ policies and those defendants who are self-insured such as supermarkets) to determine and report whether a claimant is covered and is entitled to Medicare benefits. If the claimant received Medicare benefits during their treatment for the injury, Medicare is holding out both hands to make sure they get 100% reimbursement, despite the comparative negligence of claimant.

This new law will pose new challenges for plaintiff’s attorney, the insurance carrier for the defendant and the mediator who is attempting to resolve the claim. If the attorney or insurance carrier does not comply, they risk being sued by the Government for reimbursement up to five years post-closure and monetary fines.

What is the new law?

On December 29, 2007, President George Bush signed into law the “Medicare Medical, and SCHIP Extension Act of 2007.” The new legislation amends the Medicare Secondary Payer Act (MSA) by establishing new reporting guidelines beginning July 1, 2009. Under the new rules, all liability insurers, and self-insurers will be required to determine whether any individual who files a claim against the insurer or any entity insured or covered by the insurer is entitled to Medicare benefits. If so, the insurer must provide Medicare with that individual’s identity and any other information that maybe required under the law. This information must be furnished to Medicare within the time specified by after the claim is resolved through settlement, judgment, award or other payment (regardless whether or not there has been an admission or determination of liability). If an insurer fails to notify Medicare in accordance with these guidelines, a civil penalty of $1,000 per day will be charged per claimant. The new legislation clearly indicates a shift in policy which will result in the federal government monitoring general liability claims more closely. The fines represent a new enforcement push by Medicare to hold attorneys and insurers liable.

What does it mean for Plaintiff’s Attorney?

Plaintiff’s attorney will begin to take a closer look at the case he or she accepts. The attorney should change the client intake form to ask very comprehensive health related questions, whether the client is entitled to Medicare, how long has he been on Medicare, which type of Medicare and whether the claimant has used Medicare to obtain treatment for his/her injuries. The client should be advised in detail about the new Medicare Recovery Act and that Medicare is looking for 100% reimbursement, not taking into account if there is any comparative negligence. The client should be told there is no hiding from Medicare because it will be notified upon a settlement or judgment and the lien may take months if not years to resolve.

Think twice before accepting a small personal injury case involving Medicare recipients where liability is disputed. A settlement amount will have to cover Medicare charges up to 100%, attorney fees and provide money for the plaintiff. If that type of recovery does not seem likely consider rejecting the case.

However, Baby Boomers are increasing and may be a good part of an attorney’s personal injury practice. It is estimated that in the next couple of years, approximately 25% of the Country’s population will consist of baby boomers who are Medicare recipients. If the claimant has undergone limited treatment using Medicare and needs additional treatment, consider advising the healthcare provider to bill plaintiff directly or consider finding a doctor who will take the treatment on a lien. This way a Medicare lien will be avoided or at least a very minimal lien incurred. If liability is undisputed, have the medical provider bill the insurance carrier directly.

What if the attorney has a case where Medicare has a substantial lien? If it is before July 1, 2009, consider settling the claim before that time. If you cannot, again advise the client of the new Medicare Recovery Act and the reporting requirements.

If there is a settlement and Medicare does not know about it and mistakenly pays for services it has a right to recover, it can go after the attorneys whose fees are paid out of the settlement. Also the Medicare recipient can lose his or her benefits. Lawyers could be exposed to malpractice claims for not handling a client’s benefits properly. Insurers can be liable for monetary fines for failure to report. If a plaintiff loses his Medicare benefits, the plaintiff may bring a legal malpractice claim against the attorney and a bad faith claim against the insurer for not making sure Medicare benefits were protected.

After July 1, 2009, makes sure the claim is settled for an amount that will cover the Medicare lien. It may be possible to comp the lien, but do not count on it. In making settlement demands, assume that you will pay Medicare 100% reimbursement in what is paid out. Make sure all charges refer to the injuries that your client sustained. Medicare will not be speedy to resolve these claims, so discuss with the client about holding the amount in a trust account until the CMS lien is resolved rather than disbursing the entire amount owed to plaintiff.

It is unknown whether plaintiff’s attorney will have to worry about set asides calculations for future medical care and submit them to Medicare for approval. Currently, there is no formal process of liability settlements for future medical care.

Finally, negotiations with the liability insurance carrier will become more difficult. They will demand information about your client, such as social security number, so that they can comply with the requirements and avoid fines. Also, even though Medicare may ignore the comparative negligence issues, Insurance adjusters will take the position that despite Medicare’s 100% reimbursement, it will not pay 100% of the medical bills. An insurance carrier will not want to increase the cost of a claim and stand firm on its position.

This new law will pose challenges for the plaintiff’s attorney who is attempting to resolve the claim. The key is to be aware of the Medicare Reimbursement Act, and to prepare the parties prior to a settlement of the barriers that the Medicare Recovery Act may present.

Life is full of unexpected twists and turns, and often you will find that you were going through the daily grind of your life without any hassles and suddenly you come across an event that can turn your life completely upside down. An accident is such an event which may completely change the course of your life and the stark reality of it is that you can do nothing to avert such a situation. An accident can change many things; and you may probably have to tend to that person if he happens to be a close family member of friend. If the injury sustained by the person is of a serious nature, you will need lots of money, care and tons of prayers to cure the person. The situation may at times become such that you may end up feeling that only prayers can save the person.

However if the injury has been caused due to the negligence of any other individual, organization or any other entity you can take the help of a NY personal injury lawyer to help the victim seeking compensation. Injuries take a lot of time to heal and if it is a serious injury, the victim will require all the more time to recover from it. It goes without saying that lots of money will be required to treat the person and that is the reason why you must seek the services of a NY personal injury lawyer to get the required amount of money. The injured person and his family and friends will be deeply distressed by the happening, so the lawyer must make sure that he helps them out with his legal expertise. There are many legal nuances involved in getting the compensation money and only a legal expert can help you out in this.

A NY personal injury lawyer has years of experience in handling such legal cases, you must leave it to their efficient hand to handle the case for you. You may be having lots of doubts about the whole process and probably you may also think that the whole process is very lengthy. These are some common doubts that crop up in the mind of any person who wants to seek compensation for the injury victim and only an efficient lawyer will help in clearing all these doubts. The NY personal injury lawyer will help the family of the victim in making and drafting all the paperwork that will be required for seeking compensation from the person or organization.

There are certain things in life that cannot be averted at any cost. They are supposed to happen and even if we take the best precaution in the world, it will happen. So perhaps what we can do is stay aware of all the things that can be done if at all we are faced with such an eventuality. We must know that seeking the services of a NY personal injury lawyer can actually help in taking care of many things after the accident. All we can do is just stay prepared to face any situation at any time.

The first principle of personal injury negotiating is: ask for more than you expect to get.

To apply this correctly you need to know what your case is worth but that’s a whole other article.

Once you have a ball park idea of your case’s value multiply it by three for example. Use that as your starting point. I like to think of it as an “invitation to negotiate.”

Roger Dawson is one of the country’s top experts on negotiation. He is founder of the Power Negotiating Institute and the author of “Secrets of Power Negotiating.” The audio version of his book has sold over 548 thousand copies, is one of Nightingale-Conant’s top sellers and is one of the best selling business audio programs ever published.

If you read his book-which I highly recommend-you will find in Chapter 1, that his very first principle is “Ask for More Than You Expect to Get.”

Henry Kissinger put it like this: “Effectiveness at the conference table depends upon overstating one’s demands.

Why would you want to ask for more than you expect to get?

1) It allows room to negotiate. You can always come down but you can never-or almost never-go back up once you have named a number.

At a mediation recently we learned that the other side was still considering our position to be the last number we gave before we filed suit a year earlier. A lot more was known about her physical condition and it was a lot worse than we had thought before filing suit. Finding out that our demand was twice the pre-suit amount, the other side was ready to walk out.

It took some careful work by a very skilled mediator to get them to stay.

2) Their valuation might actually be higher than yours.

Though rare in my business it does happen occasionally that the other side puts a higher value on the case than you expect. Starting with demand number much higher than your valuation allows them to come in at a number higher than yours.

My law school classmate Mel Smith used to say “the first one to name a number loses.” Asking for more than you expect is a way of naming a number without naming a number.

3) It increases the perceived value of your case.

By asking for a lot you cause the other side to begin to see your case as valuable.

4) It sets the stage for settlement

Asking for more than you expect sets the stage for you to come down (to your true valuation) and the other side feels they have had a success and got a good bargain.

Robert Cialdini in “Influence-Science and Practice” describes this as “perceptual contrast.”

“There is a principle in human perception, the contrast principle, that affects the way we see the difference between two things that are presented one after another. Simply put, if the second item is fairly different from the first, we will tend to see it as more different than it actually is.”

You have made your opening demand fairly different by asking for a lot more than you expect. This makes your case seem more valuable and also allows the other side to take a huge win from the fact that they were able to settle the case much lower than the opening number.

Downside

A downside of asking for more than you expect is that sometimes you won’t be taken seriously by your opponent. Your demand may be too far out of their conceptual ballpark. In that case they might make a very low offer in response or not make an offer at all.

The solution? Communication. Talk to them. Ask what is going on. Why aren’t they offering? Or, why are they offering so little? They’ll tell you and that will give you the clue to your next move.

Summary

Ask for more than you expect to get. You just might be surprised and at the very least you have set the stage for a successful resolution.